Employment Relations Amendment Act 2018

  • Corrections have been made to section 2(a)(v) and the Schedule on 13 December 2018 under section 25(1)(j)(iii) & (v) of the Legislation Act 2012.
22 Section 62 replaced (Employer’s obligations in respect of new employee who is not member of union)

Replace section 62 with:

62 Terms and conditions for first 30 days of employment of new employee who is not member of union

(1)

This section—

(a)

applies to a new employee who—

(i)

is not a member of a union that is a party to a collective agreement that covers the work to be done by the employee; and

(ii)

enters into an individual employment agreement with an employer that is a party to a collective agreement that covers the work to be done by the employee; but

(b)

does not apply to an employee who—

(i)

resigns as a member of a union and enters into an individual employment agreement with the same employer; or

(ii)

enters into a new individual employment agreement with the same employer.

(2)

For the purposes of subsection (1)(a), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).

(3)

For the first 30 days after the new employee commences employment with the employer, the employee’s terms and conditions of employment comprise—

(a)

the terms and conditions in the collective agreement that would bind the employee if the employee were a member of the union (other than any bargaining fee payable under Part 6B); and

(b)

any additional terms and conditions mutually agreed to by the employee and employer that are no less favourable to the employee than the terms and conditions in the collective agreement.

(4)

If the work to be done by the new employee is covered by more than 1 collective agreement, subsection (3)(a) applies to the collective agreement that binds the greatest number of the employer’s employees in relation to the work the employee will be performing.

(5)

No term or condition of employment may be expressed to alter automatically after the 30-day period in a way that makes it less favourable to the employee than the collective agreement.

(6)

For an employee who holds a minimum wage exemption permit under section 8 of the Minimum Wage Act 1983, the terms and conditions under subsection (3) are subject to the terms of the permit relating to the wages to be paid.

62A Employer must share new employee information with union unless employee objects

(1)

This section applies to an employer who enters into an individual employment agreement with a new employee under section 62.

(2)

The employer must, within 10 days after the employee commences employment with the employer, provide the employee with a form approved by the chief executive under section 237AA that the employee may complete and return in accordance with subsection (4) for the purposes of—

(a)

notifying the employer whether the employee intends to join a union (or a particular union):

(b)

objecting to the employer providing information about the employee to,—

(i)

if the employee does not intend to join a union, any union; or

(ii)

if the employee intends to join a particular union, any other union.

(3)

The form must be accompanied by a notice that—

(a)

specifies the period during which the employee may complete and return the form, which is the period described in subsection (4); and

(b)

explains that, unless the employee objects in accordance with this section, the employer will provide the following information to each union that is a party to a collective agreement that covers the work to be done by the employee:

(i)

the name of the employee:

(ii)

whether the employee has, during the period,—

(A)

notified the employer that the employee intends to join the union; or

(B)

notified the employer that the employee does not intend to join the union; or

(C)

not completed and returned the form.

(4)

The employee may complete and return the form during the period that—

(a)

starts when the employee receives the form; and

(b)

ends 30 days after the employee commences employment with the employer.

(5)

The employer must, within 10 working days of the expiry of the period described in subsection (4), provide the following to each union that is a party to a collective agreement that covers the work to be done by the employee (unless the employee has objected in accordance with this section):

(a)

the name of the employee:

(b)

if the employee completes and returns a form in accordance with this section, the completed form:

(c)

if the employee does not complete and return the form in accordance with this section, notice that the employee did not complete and return the form.

(6)

Nothing in this section limits or affects the right of an employee to become, or not to become, a member of a union or a particular union at any time.

(7)

An employer who fails to comply with this section is liable to a penalty imposed by the Authority.

63 Terms and conditions of employment of employee who is not member of union after expiry of 30-day period

(1)

This section applies after the expiry of the 30-day period described in section 62(3) to an employee who is not a member of a union that is a party to a collective agreement that covers the work done by the employee.

(2)

The employee and the employee’s employer may, by mutual agreement, vary the individual employment agreement entered into under section 62 as they think fit.

Bargaining